introduction islamic legal system
TRANSCRIPT
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COMPARATIVE ANALYSIS OF CERTAIN CRIMINAL PROCEDURE TOPICS IN ISLAMIC, ASIAN, AND COMMON LAW SYSTEMS
Angela Tang
INTRODUCTION
This paper will analyze two criminal procedure topics in Islamic, Asian, and Common
Law systems. The criminal procedure aspects of a legal system are particularly interesting from
a legal justice standpoint. In the United States, the Innocence Project has gained recognition for
its efforts in exonerating wrongly-convicted persons. The Project has been able to prove
exonorees innocence through a variety of ways, often through DNA analysis that was not
available at the time of the defendants trial. As a result of these exonerations, law scholars have
identified the mistakes that lead to wrongful convictions. Armed with the knowledge of how
wrongful convictions arise, actors in the legal justice system can institute reforms to reduce the
likelihood of wrongful convictions. The paper will generally describe the legal systems criminal
procedure aspects and will focus on the right against self-incrimination and the right to counsel.
ISLAMIC LEGAL SYSTEM
Foundations
The Islamic legal system, known as Shariah law, has its foundations in the Quran, the
holy book of Islam, and in the Sunnah, the tales of the Prophet Muhammad.1 The Quran is
believed to be the actual word of Allah.2 During the lifetime of the Prophet, Allah revealed
the Quran to Muhammad.3 Although Muhammad was illiterate, he relayed the verses of the
Quran to his followers, who recorded the book in Arabic.4 The Quran is not a code of law.5
The Quran covers topics as broad as moral and religious themes, history of the bygone events,
1 See Irshad Abdal-Haqq, Islamic Law: An Overview of Its Origin and Elements, in UNDERSTANDING ISLAMIC LAW 1, 4
(Hisham M. Ramadan ed., 2006). 2 Id. at 11. 3 Id. 4 Id. 5 MOHAMMAD HASHIM KAMALI, SHARIAH LAW 19 (2008).
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devotional matters, and certain legal issues ranging from marriage, commercial transactions,
and crime and punishment.6 Legal verses account for only 140 verses of a total 6235 verses in
the Quran.7 The legal Quranic verses expound general principles, without encumbering them
with specific details.8 The Sunnah elaborate on the general principles contained in the
Quran.9
Sunnah are stories of the words the Prophet said, actions the Prophet took, and actions
the Prophet tacitly approved by abstaining from condemnation when he could have acted.10
The Sunnah are reported in works known as Hadith, verbalized accounts of Muhammad as
reported by his contemporary followers that were later reduced to writing.11 Some Hadith are
of dubious authenticity.12 The most highly regarded Hadith, Al-Bukhari and Muslim, have
reliable chains of transmission of the Prophets deeds from the Prophets contemporaries, all the
way through the person who recorded the Prophets Sunnah.13 Sunnah stand on the same footing
with the Quran as a source of Shariah law.14 The Quran demands this result by requiring
Muslims to submit without question to Muhammads judgment and authority.15
Thus, the Quran is the foundation of Shariah law, as supplemented and elucidated by the
equally authoritative mandates of the Sunnah. Together, the Quran and Sunnah provide clear
guidance on the fundamentals of Islam, such as moral values practical duties and other
6 Id. 7 Id. 8 Id. at 22. 9 Id. at 21. 10 Abdal-Haqq, supra note 1, at 4. 11 Id. at 12. 12 Id. at 13. 13 Id. at 13-14. 14 HASHIM KAMALI, supra note 5, at 23. 15 Id. at 24.
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devotional matters.16 In the area of criminal law, however, the Quran and Sunnah are generally
flexible and proscribe only a few specific offenses, known as hudud.17 How then can Shariah law
be applied to modern criminal problems that were not foreseen by God or the Prophet? Shariah
is supplemented by human understanding and knowledge, or fiqh, which is derived from
detailed evidence in the Quran and the Sunnah.18 Fiqh that are the product of human reason, or
ijtihad,as opposed to directly commanded by the Quran or Sunnahare of secondary authority
because they are subject to the fallibility of human reason.19 Only a qualified scholar, or mujtahid,
able to read the Quran in Arabic, may practice ijtihad.20 Ijtihad that enjoys the support of the
general consensus of scholars, or ijma, becomes binding Shariah law.21
Within Shariah law, scholars have divided over the continued use of ijtihad to deduce new
rules from the Quran and the Sunnah.22 Jurists in the tenth century C.E. refrained from practicing
ijtihad, relying only on prior ijma decided by earlier scholars.23 Advocates of closing the door
were conservatives who believed that ending ijtihad would protect Islam against changes they
believed would threaten[] Islam.24 By 1258 C.E., some schools of Islam formally closed the
door to further practice of ijtihad.25 Abdal-Haqq analogizes this closing of the door to a
situation in which American judges were to rely solely on stare decisis to decide cases, could not
16 Id. at 41. 17 Id. 18 Id. 19 Id. at 42. 20 Id. at 41-42. 21 Id. at 42. 22 See Abdal-Haqq, supra note 1, at 20. 23 Id. 24 Id. at 21. 25 Id. at 21; Hashim Kamali writes that the year 1500 marked the decline of ijtihad. HASHIM KAMALI, supra note 5, at
169.
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look directly to the law to make their own analyses, and the legislatures made no new laws.26
Thus, the legal system would stagnate, being tied only to the reasoning of prior scholars and
unable to adapt to modern exigencies. Scholars dispute whether the door was actually closed,
and the question of continued ijtihad is one of the great controversies within modern Shariah
law.27
As Shariah law derived from the Quran and the acts of the Prophet by way of the Sunnah,
Shariah law is intertwined with morality.28 Shariah divides its dictates into five different shades
of obligation: obligatory; recommended; reprehensible; permissible; and forbidden.29 As
a legal system, however, Shariah law treats religious and moral transgression different from legal
transgressions in that only the legal rules of Shariah are justiciable.30 Only the obligatory and
forbidden categories can be the subject of legal action.31
Shariah criminal law is divided in to three categories of crimes: hudud, qiyas, and tazir .
Hudud crimes are specifically mentioned in the Quran and have predetermined punishments.32
Hudud crimes include: adultery or fornication; false accusations of adultery or fornication;
apostasy; drinking alcohol; theft; armed gangstery; and rebelling against the ruler.33 These
crimes warrant strict punishments including limb amputation and death by stoning or
beheading.34 As the Hudud crimes are specifically prescribed by God in the Quran, the
26 Abdal-Haqq, supra note 1. at 20. 27 See id. at 21-22. 28 See HASHIM KAMALI, supra note 5. at 44. 29 Id. at 47. 30 Id. 31 Id. 32 GEORGE N. SFEIR, MODERNIZATION OF THE LAW IN ARAB STATES 124 (1998). 33 Id. Some scholars dispute whether apostasy, drinking alcohol, and attempts to overthrow the government are
hudud crimes. There is general agreement that the other listed crimes are, in fact, hudud. Adel Omar Sherif, Generalities on Criminal Procedure under Islamic Sharia, in CRIMINAL JUSTICE IN ISLAM, 3, 5-6 (Muhammad Abdel Haleem, et al. eds., 2003).
34 SFEIR, supra note 32, at 124.
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commission of these crimes is an offense against God and the punishment cannot be mitigated
by mans mercy.35 Qiyas crimes justify[] retaliation for homicide or bodily harm36 and include
the homicide, manslaughter and any injury to another.37 The family of the qiyas crime victim
can decide whether to exact the retributive punishment or to accept diya, blood money,
instead.38 Tazir crimes are those crimes described in the Quran that are neither hudud nor qiyas.39
Hashim Kamali describes punishments for tazir crimes as being deterrent punishments in
which judges are left broad discretion to choose the appropriate punishment.40
Shariah criminal law is infused with legality. Errant judges cannot create offenses that
are not forbidden by the Quran or the Sunnah.41 That which is not specifically forbiddenby
Shariah or by legislationis allowed, and judges cannot punish offenses of which the populace
has had no notice.42 The original sources broadly describe offenses but leave the specific details
of those offenses open to human legislation by governments.43
General Criminal Procedure Aspects
Shariah criminal procedure seeks to satisfy twin goals of due judicial process and
effective control of crime.44 Criminal procedure seeks to accommodate protections for the
accused while promoting societys interest in crime detection and prevention.45 The system
35 Id. 36 Id. 37 Id. at 125. 38 Id. at 125. 39 Id. at 124, 126. 40 HASHIM KAMALI, supra note 5, at 191. 41 Id. 42 Id. at 187. 43 Id. 44 Id. at 179. 45 Id.
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focuses on efficient prosecution and conviction of the guilty while trying to minimize the
possibility of unjust convictions.46
Shariah law focuses on the individual as well as the good of the community.47 Islam
pursues its social objectives through reforming the individual in the first place.48 The
individual is thus seen as a morally autonomous agent who plays a distinctive role in shaping the
communitys sense of direction and purpose.49 Shariah law has a role for individual rights, but
those individual rights are exercised within a system that is primarily concerned with human
relations.50
To serve these ends, the system is engineered for simple, expeditious, but just
proceedings.51 The judge, rather than a prosecutor, investigates the case, even if police initiate
the case.52
Shariah law recognizes the fundamental premise of innocent until proven guilty.53 In the
Quran, it is written:
Why did not the believers - men and women - when ye heard of the affair,- put the best construction on it in their own minds and say, "This (charge) is an obvious lie"? Why did they not bring four witnesses to prove it? When they have not brought the witnesses, such men, in the sight of Allah, (stand forth) themselves as liars!54 Innocence is presumed to be a certainty that cannot be negated by a mere
accusation,55 but must be proven by the government beyond reasonable doubt,56 or as
46 Id. 47 See id. at 61. 48 Id. 49 Id. 50 Id. at 201. 51 Adel Omar Sherif, supra note 34, at 3,4. 52 Id. 53 HASHIM KAMALI, supra note 5, at 181. 54 Quran 024.12-024.13 (Yusufali trans.). This verse was noted in Liaquat Ali Siddiqui, The Conception of Justice:
Western and Islamic, in JUSTICE AND HUMAN RIGHTS IN ISLAMIC LAW 23, 38 (Gerald E. Lampe ed., 1997) 55 HASHIM KAMALI, supra note 5, at 181. 56 Id. at 182.
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alternately described beyond any doubt whatsoever.57 It is notable that hearsay evidence is
completely inadmissible in the execution of penalties.58 Perhaps because the hudud penalties
are so severe, guilt must be proven by either a freely given confession or by independent non-
hearsay proof.59 Only reliable witnesses may testify, and some hudud crimes with capital
punishment can be proven only by four witnesses.60 And those who launch a charge against
chaste women, and produce not four witnesses flog them with eighty stripes; and reject their
evidence ever after.61
Judges and law enforcement officials must be impartial, because the Quran demands it.62
Punishments must not be excessive in comparison to the crime.63 Shariah law guarantees several
other rights that are viewed as necessary for a just legal system, including: exclusion of illegally-
obtained evidence; right to confront accuser; right to inspect evidence against the defendant;
and right to cross-examine witnesses.64
Right Against Self-Incrimination
A defendant cannot be compelled to give a confession, and has the right to remain
silent.65 A coerced confession, or confession taken under force is not admissible.66 A
confession, once given, can be withdrawn even after the sentence has been passed or during its
execution.67 A valid confession cannot be given by a person who does not have full possession
57 Gamil Muhammed Hussein, Basic Guarantees in the Islamic Criminal Justice System, in CRIMINAL JUSTICE IN ISLAM 35,49
(Muhammad Abdel Haleem, et al. eds., 2003). 58 HASHIM KAMALI, supra note 5, at 183. 59 Id. 60 MUHAMMAD IQBAL SIDDIQUI, THE PENAL LAW OF ISLAM 19 (2003). 61 Quran 024:004 (Yusufali trans.). 62 HASHIM KAMALI, supra note 5, at 184. 63 See id. at 185. 64 Adel Omar Sherif, supra note 33, at 8-9. 65 Adel Omar Sherif, supra note 33, at 8. 66 Id. 67 HASHIM KAMALI, supra note 5, at 183.
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of his faculties.68 The judge must not blindly accept an offered confession, but must verify that
the defendants confession was not made merely to protect another person.69 For a confession
to be accepted, the defendant must not only admit to the category of crime, but must provide
relevant details to support his assertion of guilt.70
The strict requirements for acceptance of confessions stem from the concept that there is
a higher justice than the justice in the courts. If the defendant is truly guilty, but his guilt may
not be fairly proven in court, the defendant will still have to answer to God.71 The hidden
truthis considered to be a matter between the individual and his Creator.72
Right to Counsel
Shariah law recognizes a defendants right to be present at trial, or at a minimum, to be
represented by an authorized person at trial.73 The accused may present a defense at trial.74
There is no explicit right to counsel under Shariah law.75 Before modern times, there was
no perceived need for legal representation because legal scholars and experts were at the trial
to actively assist[] the judge in deciding the case.76 Nothing in Shariah law precludes the
defendant from using legal representation, and representation is routinely allowed.77 As the
trial is not conducted in adversarial fashion by a prosecutor, there is no imbalance if the
defendant is not represented by a lawyer. The judge has a professional and religious duty to
impartially investigate the case, so the defendant should be able to rely on the judges
68 Id. at 183. 69 Id. at 183. 70 Id. at 183. 71 Id. at 183-84. 72 Id. 73 Id. at 182. 74 Id. 75 Adel Omar Sherif, supra note 33, at 7. 76 Id. 77 Id.
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impartiality. It is written in the Quran, If then they have recourse unto thee (Muhammad)
judge between them or disclaim jurisdiction. If thou disclaimest jurisdiction, then they cannot
harm thee at all. But if thou judgest, judge between them with equity.78 One writer notes that
the accused has the right to the assistance of the court in matters of the accused persons
defense.79
When an accused uses legal representation, the representative may not seek to distort
justice and advocate falsehood by recourse to deceitful and time-consuming methods.80 The
Quran commands, And be not thou a pleader for the treacherous....81
Reasons for Criminal Procedure Protections
The Quran was revealed to the Prophet Muhammad during a period of excess and
lawlessness on the Arabian Peninsula. Pre-Islam Arabic society was generally nomadic and
tribal.82 There was an ancient Arab tendency to go to excesses in retaliation and revenge.83
For example, pre-Quran Arab justice would often double[] penalties or claim[] more than one
life in retaliation for the loss of one life.84 Although some of the mandatory punishments for
hudud crimes are viewed as barbaric by Western standards, the Quranic emphasis on impartial
trials with the highest standards of reliable evidence demonstrate that the Shariah law system
sought to end the brutality of the pre-Quran Arabic justice system. One writer notes that the
harsh corporal punishments for the hudud crimes may be implemented only when very heavy
78 Quran 005.42 (Pickthal trans.). 79 Gamil Muhammad Hussein, Basic Guarantees in the Islamic Criminal Justice System, in CRIMINAL JUSTICE IN ISLAM 35, 48
(Muhammad Abdel Haleem et al. eds., 2003). 80 Mohammad Hashim Kamali, The Right to Personal Safety (Haqq al-Amn) and the Prinicple of Legality in Islamic Sharia, in
CRIMINAL JUSTICE IN ISLAM 57, 90 (Muhammad Abdel Haleem, et al. eds., 2003). 81 Quran 004.105 (Pickthal trans.). The Shakir translation uses advocate rather than pleader. Quran 004.105
(Shakir trans.). 82 S. H. AMIN, MIDDLE EAST LEGAL SYSTEMS 309 (1985). 83 HASHIM KAMALI, supra note 5, at 185. 84 Id. at 185.
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burden of proof requirements have been met.85 These strict requirements for acceptance of
confessions show an early concern for fair justice with strong rights for accused persons.
However, with the movement against ijtihad, the closing of the door, the system has lost crucial
abilities to change in response to modern times.
Modern Use of Shariah Law
Not all Islamic states directly apply Shariah law.86 Many Arab nations have adopted
legislative forms of criminal procedure, often derived from European codes, although influenced
by Shariah law.87 Among Arab nations, Saudi Arabia is one of the rare nations to directly apply
Shariah law.88
ASIAN LEGAL SYSTEM- JAPANESE LAW
Basic Features
Japanese law is a hybrid legal system. It is a civil law system with features of common
law. The system features a modern constitution, adopted after World War II. Case law is a
source of law but is not binding in the same way as in a common law system that uses stare
decisis.89 Codes and statutes are primary authority, but after studying those sources, lawyers
consult case commentaries and sometimes case opinions.90 Courts tend to follow their own
prior decisions, although the Constitution Article 76(3) requires judges to be independent in
85 Hisham M. Ramadan, On Islamic Punishment, in UNDERSTANDING ISLAMIC LAW 43,49 (Hisham M. Ramadan ed.,
2006). The author also notes that the punishment of cutting of a thiefs hands is administered only when the thief stole an item of a certain minimum value. Id.
86 Adel Omar Sherif, supra note 33, at 11. 87 Id. 88 Id. 89 MERYLL DEAN, JAPANESE LEGAL SYSTEM 135 (2nd ed., 2002). 90 Id. at 136.
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the exercise of their conscience and bound only by [the] constitution and the laws.91
However, the Code of Criminal Procedure allows an appeal when a lower court issues an
opinion different from established precedent of the Supreme Court or the High Court.92
Foundations
Asian culture has been greatly influenced by Chinese culture.93 Asian law is no
different.94 Asian law is secular and not based on any particular religion.95 The Asian legal
tradition has been described as largely informal though informed by great learning, such that
the rule of secular law-makers is limited.96 Asian law was greatly influenced by the Chinese
philosophy of Confucianism.97 Asian religions Buddhism, Taoism, and Shintoism also influenced
Asian law.98
Colonization by the Western powers has left a legacy of western law throughout
Asia.99 The Western influences persist even today to varying degrees.100 Beginning in the late
nineteenth century, Asian nations began to westernize their legal systems, and Japan led the
way.101
Asian law as implemented in Japan is different from other Asian nations because of
Japans unique history. Japan is a relatively small island nation.102 Its exposure to foreign
91 Id. at 136 (quoting Constitution of Japan, Art. 76(3)). 92 Id. The High Court is the court of first appeal; the Supreme court is highest court in the land, the court of last
resort with powers of constitutional review. Id. at 372-73, 451. 93 See H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD 310 (3rd ed. 2007). 94 Id. at 328. 95 Id. at 311. 96 Id. 97 Id. at 304. 98 Id. 99 Id. at 329. 100 Id. 101 Id. 102 PHILIP L. REICHEL, COMPARATIVE CRIMINAL JUSTICE SYSTEMS 359 (4th ed. 2005).
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influences was limited, by reason of geography and in later years, by design.103 Before any foreign
influence affected Japanese law, the law was a mix of unofficial clan law and court law that
allowed the shaman Queen a semblance of power over the various clans.104 Law was largely
unwritten, and unofficial laws existed alongside official laws.105
China was the first major foreign influence on Japan, from around 300 B.C. to A.D.
500.106 Before allowing Chinese influence, Japan had less extensive contacts with Korea.107 As
Japan increased contact with China in 600-700 A.D., Japan decided to transplant Chinas
advanced legal system and adopted a ritsuryo legal system based on Chinese Code.108 From the
mid sixteenth century into the early seventeenth century, Japan had limited contacts with the
West, first with Portuguese traders, then Spanish missionaries.109 Suspicious of Western
influence and motives, in the 1630s, Japan adopted a rigid isolationist policy that allowed
contacts with only China and Holland.110
Japan recommenced relations with Western nations in 1853, when Commodore Perry
forced Japan to allow contact with the United States.111 In 1868, Japan abandoned its shogunate
(feudal) structure of decentralized governance in favor of returning control of the government to
the emperor in what is known as the Meiji Restoration.112 The Meiji Restoration create[d] a
sovereign state out of the chaos of a feudal state.113 From that point on, Japan looked to the
103 Id. at 363. 104 See Masaji Chiba, Japan, in ASIAN LEGAL SYSTEMS 82, 91 (Poh-Ling Tan ed., 1997). 105 Id. 106 REICHEL, supra note 102, at 363. 107 Chiba, supra note 104, at 92. 108 Id. at 93. 109 REICHEL, supra note 102, at 363. 110 Id. 111 Id. 112 Id. 113 Dean, supra note 89, at 92 (quoting K. Takayanagi, A Century of Innovation: The Development of Japanese Law 1868-1961, in
LAW IN JAPAN: THE LEGAL ORDER IN A CHANGING SOCIETY (A.T. Mehren ed., 1963)).
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West as a source of inspiration.114 In relation to other Asian nations, Japan had earlier and more
extensive contacts with the Western world.115
Japan adopted a German style system of governance because it fit well with Japans
parliamentary system headed by an emperor.116 Japan first adopted a German style civil code in
the late nineteenth century.117 Frenchmen and Germans assisted in drafting the new codes.118 In
adopting Western influenced civil law, Japan took steps to tailor the law to its needs and to
integrate Japanese customary law into the new codes.119 For instance, in response to vigorous
dissent against the original Civil Code, the Japanese re-wrote the German-inspired code to
protect the patriarchal extended family.120
The Meiji legal modernization effort culminated in completing a Criminal Code, a
Constitution, Commercial, Criminal Procedure, Civil Procedure, and a Civil Code between 1880-
1898.121 The Constitution established national sovereignty, fundamental human rights,
separation of powers, a representative government and state-controlled finances122 while
retaining the divine authority of the Emperors ruling family over Japanese subjects who
were divided into a hierarchical nobility system.123 Only landowners could vote or serve in
Parliament.124 These holdovers from the shogunate feudal system provided continuity rather
than radical upheaval.125
114 REICHEL, supra note 102, at 363. 115 Chiba, supra note 104, at 100-01. 116
REICHEL, supra note 102, at 363. 117 GLENN, supra note 93, at 329. 118 Chiba, supra note 104, at 103. 119 Id. 120 Id. at 106. 121 Id. at 99. 122 Id. at 104. 123 Id. at 105. 124 Id. at 107. 125 Id. at 107.
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Japans current legal system was born from the new 1947 Constitution of Japan,
developed following Japans loss in World War II, while Japan was occupied by the Allied
Forces.126 The constitution transplant[ed] the American common law system, eradicated the
divine right of the Emperor and replaced it with a democratic system, and renounced war.127
The new system revoked family heads powers to control their family members, allowed
womens suffrage, and eliminated the hierarchical land ownership system.128 Instead of an
extended family, hierarchical, patriarchal system, Japan became a society based on the nuclear
family and individual autonomy.129
The 1947 Constitution and its accompanying legal reforms ostensibly abolished prior
unofficial family law and Tenno (emperor law) and created a single unifying official law.130 In
reality, Japanese people retained and unofficially abode by traditional family law and Tenno law.
One author describes that, although both bodies of law were officially abolished, they really
resulted in only a covert reversion to their former influence as unofficial law.131 It serves as
social law, ordering society even though it lacks coercive force of official law.132 This results in
Japan having relatively little law for such an ordered society. It is well known that arbitration
mediation or conciliation are official means of conflict management.133 Administrative
agencies can announce uniform practices that the Japanese people willingly follow even
without the practices being reduced to writing.134 Although Japan has a civil code, it has
126 Id. at 108. 127 Id. 128 Id. at 109. 129 See id. 130 Id. at 110. 131 Id. at 110. 132 See id. at 110-11. 133 Id. at 111. 134 Id.
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relatively few lawyers few judges and few lawsuits compared to similarly developed civil
code systems.135
General Criminal Procedure Aspects
Criminal law was harsh, and criminal procedure was non-existent before the legal
innovations of the Meiji Restoration. The main criminal punishments were whipping, stick-
beating, imprisonment, exile and death; punishments were ordered by governmental authorities
in the absence of a specialised judicial institution.136 The 1880 Penal Code adopted during the
Meiji Restoration ushered in an era of legality. The most revolutionary provisions were those
that required nulle crimen, nulla poena sin lege, or, no crime and no punishment without law.137
These ideas were not known in Japan prior to the 1880 Penal Code.138 The Code also required
equality before law, whereas Japans prior feudal legal system described different crimes
applicable to persons of different social classes.139 The Code also made guilt personal and
reversed the prior law allowing [c]ollective criminal responsibility and guilt by association.140
The 1880 Penal Code was developed in cooperation with French jurists.141 A 1907 revision of the
Penal Code was based on German law; it shortened the preceding code by 166 articles, but made
no drastic changes.142
The 1880 Penal Code was accompanied by the 1880 Code of Criminal Instruction, the
first criminal procedure code.143 It largely adopted the French semi-inquisitorial method.144
135 GLENN, supra note 93, at 330. 136 Chiba, supra note 104, at 93. 137 Dean, supra note 113, at 96 (quoting K. Takayanagi, A Century of Innovation: The Development of Japanese Law 1868-1961, in
LAW IN JAPAN: THE LEGAL ORDER IN A CHANGING SOCIETY (A.T. Mehren ed., 1963)). 138 Id. 139 Id. 140 Id. 141 Id. at 96. 142 Id. at 98. 143 Id. 144 Id.
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The Code granted for the first time the right to have a defense attorney.145 The attorney did not
have the same broad discretion as the prosecutor and had to cross examine witnesses only
through the judge.146 However, the defendant had no right to counsel at the preliminary
investigation.147 The trial judge did not review the case de novo, but rather merely review[ed]
the findings of the preliminary judges investigation.148 Thus, the lack of counsel at the
preliminary investigation made the right to counsel at trial all but illusory.
The Code of Criminal Procedure of 1948, as well as the new Constitution, which
contains nine articles directly affecting criminal procedure, established modern Japanese
criminal procedure.149 Anglo-American influence is strongly reflected in Japanese criminal
procedure.150 The new Code of Criminal Procedure entered into effect on January 1, 1949 and
introduced extensive new individual rights that did not previously exist.151 The purpose of this
Code is to reveal the true facts of cases and to apply and realize criminal laws regulations
quickly and appropriately, while ensuring the maintenance of public welfare and the guarantee
of the fundamental human rights of individuals.152 The Code contains no right to a jury trial.153
Privilege Against Self-Incrimination
The Japanese defendant has a right to remain silent and not make an incriminating
statement. A coerced confession cannot be used as evidence against the defendant. The
145 Id. at 99. 146 Id. 147 Id. 148 Id. 149 Id. at 100. 150 Id. 151 Id. at 124 (quoting A.C. OPPLER, LEGAL REFORM IN OCCUPIED JAPAN: A PARTICIPANT LOOKS BACK (1976)). 152 Keiji soshoho, (Japanese Code of Criminal Procedure) KEISOHO art. 1, available at
http://www.cas.go.jp/jp/seisaku/hourei/data/COCP_1-2.pdf. 153 Id. at 126. Japan will implement jury trials by May of 2009. The change is hoped to reduce the number of
wrongful convictions and to speed the trial procedure and reduce case backlogs. Yuriko Nagano, Japan Preps its Citizens for a New Role: Jurors, CHRISTIAN SCI. MONITOR, Sept. 11, 2007, at 4.
http://www.cas.go.jp/jp/seisaku/hourei/data/COCP_1-2.pdf.
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Japanese Constitution states, No person shall be compelled to testify against himself.154 The
Constitution specifically indicates, Confessions made under compulsion, torture or threat, or
after prolonged arrest or detention shall not be admitted in evidence.155 The Code of Criminal
Procedure reiterates, Confession under compulsion, torture, threat, after unduly prolonged
detention or when there is doubt about it being voluntary may not be admitted as evidence.156
Additionally, the constitution provides that defendant may not be convicted of a crime if
the sole proof of guilt is the defendants own confession.157 The Code of Criminal Procedure
buttress this limitation in that, The accused shall not be convicted when the confession,
whether it was made in open court or not, is the only piece of incriminating evidence.158
Going a step further than most systems, the Japanese system does not require the
defendant to testify under oath in his own defense.159 The defendant may testify without danger
of risking charges of perjury.160 As such, the defendant is technically allowed to lie when
testifying in his own defense.161 However, this is a dangerous path because the defendant risks
loss of his credibility when the lie is discovered.162 In allowing testimony without oath, the
defendant is not faced with the dilemma of choosing between perjury and letting the jury believe
that the defendants failure to testify is evidence of guilt.163
The defendants right to remain silent is also enshrined in the Code of Criminal
Procedure. The accused may remain silent at all times or may refuse to answer particular 154 Nihonkoku Kenpo (Constitution of Japan) KENPO, art. 38 (Promulgated Nov. 3, 1946, entered into effect May 3,
1947). 155 Id. At art. 38(2). 156 KEISOHO, supra note 152, at art. 319(1). 157 KENPO, supra note 154, at art. 38(3). 158 KEISOHO, supra note 152, at art. 319(2). 159 Dean, supra note 113, at 127. 160 Id. 161 Id. 162 Id. 163 Id. Although in the American system, the defendants failure to testify cannot be taken to be evidence of guilt, and
the jury may be instructed on that fact, no jury instruction can convince the juror to act against his own instincts if the juror is suspicious of the defendants failure to testify.
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questions.164 Also, When the accused makes a statement voluntarily, the presiding judge may
ask the accused any necessary questions at any time, subject to the defendants right to remain
silent.165 Via the judge, the public prosecutor, the counsel, the codefendant or his counsel
may also ask the defendant questions.166
Right to Counsel
The Japanese Constitution guarantees the right to counsel. Article 34 states, No person
shall be arrested or detained without the immediate privilege of counsel.167 Furthermore,
Article 37(3) provides that At all times the accused shall have the assistance of competent
counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to
his use by the state.168 As noted above, the 1880 Code of Criminal Procedure guaranteed
counsel at trial, but not during the preliminary investigation in which guilt was primarily
established. The post-war Code of Criminal Procedure abolished the preliminary investigation,
effectively closing the loophole that undercut the right to counsel.169
The Constitution only guarantees the right to counsel to a person who has been arrested
or accused, and the status as an accused begins after initiation of public prosecution.170
Thus, the criminal suspect, neither arrested nor accused, lacks a constitutional right to counsel.171
The Code of Criminal Procedure extends the right to counsel to criminal suspects.172 Article
30(1) of the Code states, The accused or the suspect may appoint counsel at any time.173 A
164 KEISOHO, supra note 152, at art. 311. 165 Id. at art. 311(2). 166 Id. at art. 311(3). 167 KENPO, supra note 154, at art. 34 168 Id. at art. 37(3). 169 Dean, supra note 113, at 125. 170 B. J. George, Rights of the Criminally Accused, in JAPANESE CONSTITUTIONAL LAW 289, 304 (Percy R. Luney, Jr., &
Kazuyuki Takahasi eds., 1993). 171 Id. 172 Id. 173 KEISOHO, supra note 152, at art. 30(1).
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legal representative or close relative may also appoint counsel for a criminal suspect or
accused.174 However, this is not the right to appointed counsel if the suspect cannot afford to
pay a lawyeronly indigent accused persons or arrestees, not suspects, are entitled to
government-furnished counsel.175 Regarding court-appointed counsel for indigents, the Code
states, When the accused is unable to appoint counsel because of indigency or other reasons,
the court shall appoint counsel for the accused upon his/her request; provided, however, that
this shall not apply when counsel has been appointed by a person other than the accused.176
The Code of Criminal Procedure somewhat limits the defense counsels access to his
client when the client is a suspect and not yet an accused.177 Article 39 of the Code states, The
accused or the suspect in custody may, without any official being present, have an interview
with counsel upon request .178 However, A public prosecutor may, when it is
necessary for investigation, designate the date, place and time of the interview prior to the
institution of prosecution; provided that such designation shall not unduly restrict the rights
of the suspect to prepare for defense.179 One author notes that defense attorneys have
complained that some police and prosecutors abuse this power in ways that are not necessary
for investigation, as required by the Code.180
The post-war Code of Criminal Procedure revised the procedure at trial, making the
defense counsel of equal importance as the prosecutor. The old procedure was modeled on civil
code trials, in which the trial judge and prosecutor had a large role in trying the case, but the
174 KEISOHO, supra note 152, at art. 30(2). 175 George, supra note 170, at 304. 176 KEISOHO, supra note 152, at art. 36. 177 See George, supra note 170, at 305. 178 KEISOHO, supra note 152, at art. 39(1). 179 Id. at art. 39(2). 180 George, supra note 170, at 304.
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defense attorney was a mere mouthpiece for the defendant.181 The trial judges first contact with
the case came from a dossier prepared by the prosecutor that presented the prosecution case
against defendant, which inevitably influenced [the judge] in favor of the prosecution.182 The
new Code requires all evidence to be provided by testimony or documentary evidence in the
presence of the parties, normally in open court.183 The new Code maintains some inquisitorial
features of the judge.184 These features include a judges limited power to determine the scope,
order, and method of examination of evidence after hearing the suggestions of the litigants.185
Additionally, the presiding judge usually starts the examination of witnesses and is followed by
the parties.186 Both defense counsel and prosecutor can direct and cross-examine witnesses.187
COMMON LAW SYSTEM, AS IMPLEMENT IN ENGLAND
Foundations
The Common law system was born from the Norman conquest of England in 1066.188
Before the Norman conquest, England had unwritten oral law.189 Britain had been briefly
conquered by the Romans in the first four centuries A.D.190 The Romans replaced Britains
previously oral chthonic law system with Roman law.191 When the Roman conquerors left
England, England rejected Roman law and returned to unwritten local custom law.192 Different
181 Dean, supra note 113, at 125. 182 Id. 183 Id. 184 Id. at 126. 185 Id. at 126. 186 Id. 187 Id. 188 MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS 268 (1985). 189 Id. Glenn describes pre-Norman English law as chthonic. GLENN, supra note 93, at 224. 190 GLENDON, supra note 188, at 269. 191 Id. 192 Id.
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customary law systems existed in different areas of England.193 The disparate coverage of the
law was a result of a weak central government in which the king had little control over the
country as a whole.194 Customary law was practiced in the local courts, known as shire
courts and hundred courts.195 Matters in shire court were decided by the sheriff; matters in
hundred courts were decided by a bailiff.196 The shire courts dealt with the more serious cases
which were considered to pertain to the king.197 The hundred courts heard disputes between
two parties who both lived within the territorial jurisdiction of the hundred court.198 This was
the state of the law when William the Conqueror took control of England in 1066. The Norman
conquerors did not lay down a new system of laws. They accepted important elements of
English custom, whilst imposing some of their own ideas and practices.199
William sought to strengthen central government and to standardise the law.200 The
Normans heading the government spoke French, whereas their conquered English subjects
spoke English.201 The Norman conquerors were few, whereas the English subjects were many.202
Having few English-speaking administrators with which to rule all of England, William
established a centralized system of rule.203 Priests were appointed as a kind of permanent
judicial officer because they were unique among Englishmen in that they were literate.204 There
being a limited number of priests to cover all of the royal courts, the priest-judges needed to
193 CATHERINE ELLIOT & FRANCES QUINN, ENGLISH LEGAL SYSTEM 9 (7th ed., 2006). 194 Id. 195 JOHN HUDSON, THE FORMATION OF THE ENGLISH COMMON LAW 34-40 (1996). 196 Id. 197 Id. at 39. 198 Id. at 40. 199 Id. at 17. 200 Id. at 9. 201 See GLENN, supra note 93, at 225. 202 See GLENDON, supra note 188, at 270. 203 Id. 204 GLENN, supra note 93, at 226.
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quickly and efficiently dispose of cases.205 In order to give judicial proceedings an air of
legitimacy, the judge left the decision making to local folks, a predecessor to modern juries.206
Involving the local populace also resulted in a more efficient process because the judge being
an outsider knew little of the case and could rely on local persons knowledge of the dispute.207
William maintained the pre-existing shire and hundred courts.208 The shire and
hundred courts were controlled by local barons and handled issues of local concern.209 The king
also established royal courts, including Courts of Common Pleas.210 These common law courts
could hear cases that did not involve a direct interest of the king.211 Common law courts were
located throughout England and began to hear cases that had previously been heard in the shires
and hundreds.212
The common law courts had limited jurisdiction because of the writ system.213 A case
could be heard only if the king had issued a writ allowing that type of action.214 If the case could
not be fit within a writ, it could not be heard. 215 If the claimant pleaded to the wrong writ, the
claimant could not change writs.216 In this manner, the common law had a great emphasis on
procedure.217 If a claimant could allege facts within an allowed writ, then the case could be
referred to a jury, and the jury would make a substantive decision.218 Thus, the writ is a
procedural device that serves as the gate keeper to the jury, in whose minds the substantive
205 Id. 206 Id. 207 Id. 208 HUDSON, supra note 195, at 40. 209 GLENDON, supra note 188, at 270, 272. 210 Id. at 270. 211 Id. 212 Id. at 271. 213 Id. 214 Id. 215 Id. 216 Id. 217 Id. 218 GLENN, supra note 93, at 230.
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decision is made and the substantive law was created based on the old chthonic law.219 Over
time, judges decisions as to which facts fit within designated writs became a type of unofficial
stare decisis.220 And juries created substantive law that emerge[d] from the facts it had to
regulate.221 People could look to prior jury outcomes and expect that if they alleged the same
facts, that they would receive the same outcome.222 Where you could previously get to the jury,
and win if they believed you, it can now be said that you are entitled as a matter of substantive
law.223 By the nineteenth century, substantive and procedural law became national, common
all throughout England.224
In 1285, the Statute of Westminster prohibited the creation of new writs.225 In order to
increase common law courts jurisdiction to encompass new cases not specifically covered by
existing writs, the court began to extend writs by logic and analogy.226 Eventually the common
law courts replaced the local courts as the exclusive avenue of justice.227 And the concept of
stare decisis was firmly established, such that each decision of the court would represent a rule of
law.228 Due to the harsh nature of the writ system, the king began to allow equitable claims.229
The Court of Chancery was created to hear equitable claims for injunctive relief and specific
219 Id. at 230, 232. 220 Id. at 231. 221 Id. at 237. 222 Id. at 243. 223 Id. 224 Id. at 246. 225 GLENDON, supra note 188, at 271. 226 Id. 227 See id. at 272. 228 GLENN, supra note 93, at 246. 229 GLENDON, supra note 188, at 273.
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performance.230 In the nineteenth century, the rigid writ pleading system was abolished, and
equity and common law were merged into one body of law.231
General Criminal Procedure Aspects
Britain does not have a written constitution.232 The Magna Carta, combined with the
Bill of Rights of 1689, form the foundation of the unwritten constitution.233 The basis of
criminal procedure is therefore statutory. The Police and Criminal Evidence Act of 1984 (PACE)
governs behavior of police throughout England and Wales.234 In 2005, the main rules on
criminal procedure were codified into the Criminal Procedure Rules so as to make the rules
more accessible by putting them into one document.235 The Crown Prosecution Service was
created in 1985 to conduct all prosecutions in England.236 Prior to that time, police made the
decision of how and whether to prosecute crimes.237
Serious criminal casesmurder, rape, and serious offenses against the person-- are
tried in the Crown Court before a jury of twelve persons, requiring an unanimous verdict.238
Summary offenses are tried in Magistrates Courts in front of a panel of 3 lay judges advised by
a legally trained Clerk.239 Offenses that are neither summary nor serious may be tried at either
the Magistrates Court or the Crown Court depending on whether the defendant wishes his case
to be tried before a jury.240
230 Id. 231 Id. at 277. 232 ELLIOT & QUINN, supra note 193, at 1. 233 GLENDON, supra note 188, at 275. 234 Dr. A.T.H. Smith, England and Wales, in CRIMINAL PROCEDURE SYSTEMS IN THE EUROPEAN COMMUNITY 73, 73-74
(Christine Van Den Wyngaert ed., 1993). 235 ELLIOT & QUINN, supra note 193, at 362. 236 A.T.H. Smith, supra note 234, at 76. 237 Id. 238 Id. at 77-79. 239 Id. at 77,79. 240 Id. at 79.
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Right Against Self-Incrimination
The common law right against self-incrimination evolved in conjunction with the right
to defense counsel.241 In the early sixteenth century, a defendant could not use counsel, so the
defendant had to advocate for himself.242 Refusing to speak would have amounted to a
forfeiture of all defense.243 This early trial conception was one in which the accused speaks.244
By the late eighteenth century, defendants were allowed defense counsel and many defendants
used counsel.245 With a defense counsel to speak for the accused, the accused now had an
opportunity to remain silent that did not previously exist.246 With both defense and
prosecution counsel, the criminal trial evolved into an adversary system that sought to test[]
the prosecution case rather than let the accused speak.247
In addition to the prominent role now played by defense attorneys, English law was
receptive to a privilege against self-incrimination because it was a rejection of the brutal
practices of the Star Chamber.248 In the fifteenth century, Henry VII decreed criminal judicial
power to the Star Chamber.249 The Chamber featured an inquisitorial procedure and used
coercive methods to extract confessions and the names of accomplices.250 The accused had to
swear an oath to answer any questions that the court might put to him, and a defendant
241 John H. Langbein, The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries, in THE
PRIVILEGE AGAINST SELF-INCRIMINATION 82,82 (R. H. Helmholz et al. eds., 1997). 242 See id. at 82-83. 243 Id. at 83. 244 Id. 245 Id. 246 Id. at 82. 247 Id. at 83. 248 See id. at 101. 249GLENDON, supra note 188, at 274. 250 Id.
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who refused to take that oath could be imprisoned for contempt.251 The Chamber was
abolished during a period of civil war in the early seventeenth century.252
The final blow to compelled defendant testimony came in 1898, when England codified
the privilege against self-incrimination.253 The Criminal Evidence Act required that a defendant
shall not be called as a witness against himself.254
A coerced confession is inadmissible. A confession may not be admitted unless it is
proved beyond a reasonable doubt that the confession was not obtained by oppression of the
person who made it.255 A confession is inadmissible if it was obtained under circumstances
that would render the confession unreliable.256 Even if a confession is excluded, the fruits of
that confession, the facts discovered as a result of the confession, need not be suppressed.257
However, the prosecutor may not indicate that the resulting evidence was arrived at based on a
suppressed confession.258
A criminal defendant may choose to remain silent during police questioning,
investigation, and at trial. However, since the passage of the Criminal Justice and Public Order
Act of 1994 [CJPOA],259 the defendants silence at these crucial stages may have negative
consequences at trial.260
Section 35 of the CJPOA applies to defendants over the age of fourteen years who have
no physical or mental impediment that makes it undesirable for the defendant to give
251Langbein, supra note 241, at 101. 252 GLENDON, supra note 188, at 275. 253 Henry E. Smith, The Modern Privilege: Its Nineteenth-Century Origins, in The Privilege Against Self-Incrimination 145,
179 (R. H. Helmholz, et al. eds., 1997). 254 Id. 255 PACE 76(2). 256 PACE 76(2). 257 PACE 76(4)(a). 258 PACE 76(5). 259 Criminal Justice and Public Order Act 1994, 35(1) (1994), available at http://www.opsi.gov.uk/Acts/acts1994/ukpga_19940033_en_5#pt3-pb3. 260 See ANDREW ASHWORTH, THE CRIMINAL PROCESS 96-100 (2nd ed., 1998).
http://www.opsi.gov.uk/Acts/acts1994/ukpga_19940033_en_5#pt3-pb3.
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evidence at trial.261 Section 35 states that the court or jury may draw such inferences as appear
proper from [the defendants] failure to give evidence or his refusal, without good cause, to
answer any question at trial as long as the accused was aware that he had the opportunity to
give such evidence.262 Section 35 does not render the accused compellable to give evidence on
his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure
to do so.263
At trial, Section 34 allows that the court or jury may take note of defendants failure to
speak during investigative questioning. Two periods of questioning are relevant: questioning
that takes place when defendant is charged with a crime; and questioning before suspect is
charged with a crime but after having been informed of the suspects rights.264 At the judge or
jurys discretion, the fact finder may draw such inferences as appear proper from defendants
failure to mention a particular fact upon which he relied for his defense at trial.265 The fact
finder may consider defendants failure to mention a fact which in the circumstances existing at
the time the accused could reasonably have been expected to mention when so questioned,
charged or informed.266 In any proceeding in which defendant moves for dismissal of charges,
the failure to speak of relevant facts may also be taken into account.267
In a similar manner, CJPOA Section 36 permits the defendants failure to account for
objects, substances, or marks, on the defendants person or effects at time of arrest to be held
against the defendant.268 This provision applies to objects in defendants possession, in vicinity
261 Criminal Justice and Public Order Act 1994, 35(1) (1994), available at
http://www.opsi.gov.uk/Acts/acts1994/ukpga_19940033_en_5#pt3-pb3. 262 Id. at 35(2). 263 Id. at 35(4). 264 Id. at 34(1). 265 Id. at 34(2). 266 Id. at 34(1). 267 Id. at 34(2). 268 Id. at 36(1).
http://www.opsi.gov.uk/Acts/acts1994/ukpga_19940033_en_5#pt3-pb3.
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of defendant at time of arrest, marks upon defendants clothing, footwear or any objects held by
defendant.269 The provision applies only if the arresting constable informed the defendant in
ordinary language that he believes that the mark, object, or substance is related to the
defendants participation in the crime, and the defendant refuses or fails to answer the
constables questions about the object in question.270 CJPOA Section 37 allows similar
inferences to be made from a defendants failure to account for his presence at a crime.271 The
provision applies when defendant is arrested at the crime scene at or about the time the offence
for which he was arrested is alleged to have been committed.272
Although Sections 34-37 of CJPOA allow negative inferences to be drawn from
defendants silence, these inferences can be considered only in conjunction with other, more
concrete evidence. The prosecutor may not bring a case, and a defendant may not be convicted,
solely on the negative inference drawn from failure to speak.273 Likewise, a judge may not base a
decision not to dismiss charges solely based on an inference drawn under these sections.274
The Royal Commission on Criminal Procedure recommended against undermining the
defendants right against self-incrimination and vehemently opposed the passage of CJPOA
Sections 34-38.275 The Commission wasnt completely adverse to drawing inferences from the
defendants silence during police questioning so long as the defendant had received full notice
of the prosecution case and had declined to comment on it.276 The Commission did not want to
allow the inference to made, however, when the defendant was unlikely to know what evidence
the police had against him partly because the suspect may have been intimid[ated] by being 269 Id. at 36(1). 270 Id. at 36(1), 36(4). 271 Id. at 37(1). 272 Id. at 37(1). 273 Id. at 38(3). 274 Id. at 38(4). 275 See ASHWORTH, supra note 260, at 96-100. 276 Id. at 97.
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questioned at the police station.277 On the other side of the debate, police and prosecutors
argued that the defendants right to silence worked to ambush the prosecution by withholding
the nature of their defence until trial thereby reducing the prosecutions opportunity to
rebut it.278 Prosecutors and police further argued that professional criminals took advantage
of the right to silence to avoid conviction.279 Police argued that suspects and defendants did
not feel intimidated during pre-trial questioning because widespread legal aid and duty
solicitor schemes ensured that suspects had legal counsel to assist them during questioning and
would not be overrun by coercive police interrogation methods.280 Having no constitutional
duty to protect the right of silence, Parliament passed the CJPOA in spite of the Commissions
objections. The move was billed as a victory for law and order.281
Right to Counsel
The use of defense counsel in common law dates to the Leges Henrici Primi, or laws of
Henry I, written in the early twelfth century.282 These laws allowed an accused to have a friend
or relative speak for the accused.283 Not until the second half of the thirteenth century, did
criminal accused persons begin to use professional legal representatives.284 During medieval
times, a capital crime defendant was prohibited by law from using a defense attorney.285 Over
time, this prohibition was tempered. In the later Middle Ages, an attorney could argu[e]
questions of law at trial, although counsel were seldom used.286 In the eighteenth century,
277 Id. 278 Id. at 98. 279 Id. at 99. 280 See id. 281 Id. at 101. 282 DAVID J. A. CAIRNS, ADVOCACY AND THE MAKING OF THE ADVERSARIAL CRIMINAL TRIAL 25 (1988). 283 Id. at 26. 284 Id. 285 Id. at 3. 286 Id.
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counsels role expanded to include the ability to examine and cross-examine witnesses.287
Only during the eighteenth century did defendants begin regularly using defense counsel, first in
cases of murder trials, and eventually in lesser offenses.288 The Prisoners Counsel Act of 1836
abolished the old limitations, allowing full use of defense counsel to include making arguments
to the jury in felony trials, evening the playing field between defendant and state because the
prosecutor had always been allowed to argue to the jury.289
In debating the Prisoners Counsel Act, opponents argued against allowing defense
attorneys to argue to the jury because it would only enable counsel to distort the truth with
sophisticated and emotive arguments.290 Proponents pointed to the need for fair proceedings
given the harsh penalties at stake. At the time, the death penalty was imposed for all serious
offences, and for many minor and obsolete crimes.291 The passage of the Prisoners Counsel Act
put the defense counsel on full parity with the prosecutor and led to the development of a full-
fledged adversarial trial system within the next twenty years.292
In modern procedural law, the Police and Criminal Evidence Act 1984 [PACE] allows
[a] person arrested and held in custody to consult a solicitor293 privately at any time upon
request.294 Upon request, the arrestee must be given access to a solicitor as soon as is
practicable, not to exceed a delay of 36 hours.295 However, if the arrestee is arrested for a
287 Id. 288 See id. 289 Id. Counsel had never been prohibited from making arguments to the jury in misdemeanor trials. Id. 290 Id. at 4. 291 Id. 292 See id at 4, 163. 293 Solicitor and barrister both refer to lawyers. A criminal accused will first have a solicitor, who will then hire
a barrister to represent the client at trial. ELLIOT & QUINN, supra note 193, at 161. 294 Police and Criminal Procedure Act 1984 58(1), available at
http://www.statutelaw.gov.uk/legResults.aspx?LegType=All+Legislation&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&PageNumber=0&NavFrom=0&activeTextDocId=1871554. The right to counsel upon arrest does not apply to terror suspects. PACE 58(12).
295 PACE 58(4), 58(5).
http://www.statutelaw.gov.uk/legResults.aspx?LegType=All+Legislation&searchEnacted=0&extentMatch
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serious offense, an police superintendant can authorize delay up to 36 hours296 if
immediate grant of the request would result in: harm to related evidence; physical injury to
other persons; alerting other suspects who have yet to be arrested; or hindering recovery of
property that is fruit of the subject crimes.297
PACE Code C provides specific implementation guidance to police. Police must notify
an arrestee of the right to counsel, indicating that the solicitors services are free and
independent.298 The police station charging area must have a poster informing arrestees of
their right to counsel.299 Police are forbidden from dissuading a detainee from obtaining legal
advice.300 If a detainee waives the right to speak to a solicitor, the police officer must ask for
and, if the detainee provides a reason, note the reason on the detainees paperwork.301 The Legal
Aid Act of 1988 also provides for a duty solicitor scheme[] by which a duty solicitor is available
via a national telephone network.302
Although a detainee is entitled to legal advice free of cost, regardless of income, the same
is not true for legal representation at trial. The Access to Justice Act 1999 established the Legal
Services Commission to provide state-funded legal services in both civil and criminal matters.303
The Commissions Criminal Defence Service (CDS) provides defense attorneys for indigent
defendants.304 The CDS provides a trial attorney subject to a merits test but not a means
test.305 An attorney will be provided regardless of defendants financial situation if the merits
test is met. Magistrates decide whether a defendant meets the merits test for 296 PACE 58(6). 297 PACE 58(8). 298 PACE Code C 6.1, available at http://police.homeoffice.gov.uk/publications/operational-
policing/2008_PACE_Code_C_(final).pdf?view=Binary. 299 PACE Code C 6.3. 300 PACE Code C 6.4. 301 PACE Code C 6.5. 302 GARY SLAPPER & DAVID KELLY, THE ENGLISH LEGAL SYSTEM 329 (4th ed., 1999). 303 ELLIOTT & QUINN, supra note 193, at 291-92. 304 Id. at 295. 305 Id. at 298.
http://police.homeoffice.gov.uk/publications/operational-
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representation.306 An attorney will be appointed if it is in the interests of justice, based on
these factors: severity of the case with possibility for prison sentence or defendant losing their
job; substantial questions of law are involved; defendant is unable to follow the proceedings
and explain their case due to language or mental difficulties.307 This system leaves indigent
defendants whose cases fail the merits test without legal representation at trial. As the trial
process is adversarial,308 the indigent defendant with a merit-less case is at a significant
disadvantage. However, rich defendants do not necessarily enjoy a free ride. In Crown Court
cases, after conclusion of the case, the judge may require a defendant to repay some or all of the
defense costs depending on the defendants financial position.309
COMPARATIVE ANALYSIS
The three systems analyzed have vastly different approaches to the issues of right to
counsel and somewhat varying approaches to the right against self-incrimination. As Shariah
law is derived from a religious text, it is not geared toward being a legal code. Thus, criminal
procedure under pure Shariah law is skeletal, sketching out broad principles, but not minute
details. Shariah serves the community as a whole while maintaining the rights of the individual.
It seeks efficient justice but knows that if justice is not meted out in the Shariah courts, God will
mete out the ultimate justice. Thus, the defendant has a right to remain silent and a compelled
confession may not be admitted. Beyond these broad rights, little explication is made. Also,
because the judge has a duty to God to conduct the trial according to Shariah law, the judge can
be trusted to act as an advocate for the defendant in lieu of a lawyer. Lawyers are not used for
the prosecution and rarely used for the defense. This is unsurprising given the purpose of Shariah
306 Id. at 296. 307 Id. at 296-97. 308 Id. at 361. 309 Id. at 298.
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law to find the truth according to Shariah. The defendant need not fear malicious prosecution
because the judge and police, as devout Muslims, could not commit such a sin.
The Japanese legal system is very different from Shariah law. Whereas Shariah law is tied
inextricably to the past, revealed teachings, the Japanese legal system was largely born in 1947.
After World War II, Japan was required to, and took advantage of the opportunity, to remake
itself for the modern world. Japans legal system is heavily influenced by American common law
because Allied Forces occupied Japan in the immediate post-war period when the Constitution
was being formed. As such, Japan has a modern constitution that guarantees specific legal
rights. Japans constitution is clear. It is more code-like than older constitutions, such as the
United States Constitution. Being able to draw upon the experiences of the American
occupiers, Japan incorporated aspects of American criminal procedure, for example, rights
similar to the Miranda rights, directly into the constitution. The Japanese constitution therefore
grants powerful rights to the criminal defendant. The constitution undeniably guarantees a
right against self-incrimination and the mandatory exclusion of any coerced or involuntary
confession. Additionally, the constitution guarantees the right of a criminal accused to legal
counsel. Statutory law extends this right to a suspect. An accused, but not a suspect, may have
counsel appointed for him if he cannot so afford the lawyer.
Britain does not have a written constitution. Thus, the rights that would otherwise be
inalienable are actually changeable in English law. The right against self-incrimination evolved
in a circle. Whereas first the Star Chamber relied on forced confessions, England then came to
recognize an absolute right against self-incrimination, both at trial and in pre-trial questioning.
Faced with a perceived problem with law and order, England legislated away some of the
protection of the right against self-incrimination. Although the defendant has an absolute right
to remain silent during questioning and at trial, in certain instances, the defendants silence can
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be used as evidence of guilt. Although a defendant has the absolute right to legal counsel at trial,
some indigent defendants may be left without appointed counsel if their case does not pass a
merits test. However, all persons have the right to consult a lawyer during police detention,
free of charge.
The Japanese and English legal systems are left free to innovate and modify the law in a
way that the Shariah law system does not allow. To the extent that the door is closed to ijtihad,
no innovation is possible in Shariah law. Even considering that the door remains open to
ijtihad, the mujtahid are left to deduce new ideas from the same finite amount of law in the Quran
and the Sunnah. The mujtahid may be able to creatively interpret the Quran or Sunnah to apply to
modern problems, but there is only so much law that can be deduced from the limited amounts
of legal passages in the Quran or Sunnah. Thus, in a country that relies solely on Shariah law as the
supreme law of the land, such as Saudi Arabia, there can be little or no innovation in the law.
The law cannot be given greater specificity and thus cannot call for more complicated
proceedings than already exist. In most nations using Shariah law, the Shariah principles are
supplemented by legislative enactments, allowing greater specificity and modernization.
The English legal system, featuring an unwritten but not a written constitution, is
relatively freer to scale back on criminal procedure rights. The Japanese constitution guarantees
broad rights as a minimum, and legislation guarantees additional rights. The legislatively
granted rights may be changed and rescinded, but the constitutional rights must be honored
unless the constitution is amended.
CONCLUSION
It would be entirely too easy for a Western-educated comparatist to dismiss Shariah law
as outmoded. Indeed, there is great controversy surrounding the human rights implications of
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the punishments for hudud crimes. If the Shariah courts faithfully adhere to the spirit of Shariah
law, there can be no greater guarantee of just treatment than the confidence that your judge has
a religious duty to handle your case fairly. The relative rarity of using defense counsel may be
indicative of defendants confidence in the judges fairness. Another positive aspect of Shariah
law is the simplicity and expediency of the proceedings. So long as the benevolent, God-fearing
judge obeys his duty to fairly try cases, the Shariah system is well fitted to modern times, despite
being rooted in an ancient text. If, however, the judge is not fair, then the defendant is left to the
mercy of the court and subject to harsh justice with very little process.
It is surprising that England has diminished the defendants right against self-
incrimination. It is also notable that England requires some indigent defendants whose cases
do not meet the merits test to justify appointed counselto defend themselves against a
prosecutor without having had any legal training. Although the Shariah defendant will likely
choose not to have a lawyer, or if they so desire one but cannot afford one, they will be not be
entitled to appointed lawyer, the Shariah defendant does not face a prosecution by a trained
lawyer.
The Japanese legal system is notable for its opportunity to re-invent itself in the
twentieth century. It is also notable for having maintained some aspects of indigenous Japanese
law, while absorbing some of the best features of Western legal systems.
Although the three legal systems evolved from drastically different beginnings, subject to
drastically different conditions along the way, they all allow for an absolute right against self-
incrimination and an absolute right to be defended by counsel. The systems have simply chosen
to qualify the right in different ways. All systems are equally valid and have proven to be
successful in their respective countries.